United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2012 Decided July 10, 2015

Ordered Held in Abeyance February 19, 2013

Removed from Abeyance December 8, 2014

No. 11-1099

SOUTHERN NEW ENGLAND TELEPHONE COMPANY,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,

INTERVENOR

Consolidated with 11-1143

On Petition for Review and Cross-Application for 

Enforcement of an Order of the National Labor Relations 

Board

George E. O'Brien argued the cause for petitioner. With 

him on the briefs were Thomas P. Dowd and Jason R. 

Stanevich. 

Zachary R. Henige, Attorney, National Labor Relations 

Board, argued the cause for respondent. With him on the brief 
2

were John H. Ferguson, Associate General Counsel, Linda 

Dreeben, Deputy Associate General Counsel, and Robert J. 

Englehart, Supervisory Attorney.

James B. Coppess argued the cause and filed the brief for 

intervenor. 

Before: TATEL and KAVANAUGH, Circuit Judges, and 

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: Common sense sometimes 

matters in resolving legal disputes. This case is a good

example. AT&T Connecticut banned employees who interact 

with customers or work in public – including employees who 

enter customers’ homes – from wearing union shirts that said

“Inmate” on the front and “Prisoner of AT$T” on the back. 

Seems reasonable. No company, at least one that is interested 

in keeping its customers, presumably wants its employees 

walking into people’s homes wearing shirts that say “Inmate” 

and “Prisoner.” But the NLRB ruled in a 2-1 decision that 

AT&T committed an unfair labor practice by barring its 

employees from wearing those shirts. Section 7 of the 

National Labor Relations Act protects the right of employees 

to wear union apparel at work. But under this Court’s 

precedent and Board decisions, there is a “special 

circumstances” exception to that general rule: A company 

may lawfully prohibit its employees from displaying messages 

on the job that the company reasonably believes may harm its 

relationship with its customers or its public image. Put 

simply, it was reasonable for AT&T to believe that the 

“Inmate/Prisoner” shirts may harm AT&T’s relationship with 

its customers or its public image. Therefore, AT&T lawfully
3

prohibited its employees here from wearing the shirt. We 

grant AT&T’s petition for review, vacate the Board’s decision 

and order with respect to the “Inmate/Prisoner” shirts, and 

deny the Board’s cross-application for enforcement.1

* * *

AT&T Connecticut provides telecommunication services 

throughout Connecticut. (We will use AT&T as shorthand to 

refer to AT&T Connecticut.) A union known as the 

Communication Workers of America represents AT&T’s 

employees. As part of a public campaign to put pressure on 

AT&T during contentious contract negotiations, the union 

distributed T-shirts to its members. The shirts were white 

with black lettering. The front of the shirt said “Inmate #” and 

had a black box beneath the lettering. The back of the shirt 

said “Prisoner of AT$T,” with several vertical stripes above 

and below the lettering. The shirt contained no reference to 

the union or to the ongoing labor dispute. 

On two occasions, the union encouraged employees to 

wear the “Inmate/Prisoner” shirt to work, and hundreds of

employees did so. Each day, AT&T supervisors instructed all 

employees who interacted with customers or worked in public 

to remove the “Inmate/Prisoner” shirt. AT&T issued one-day 

suspensions to 183 employees who did not comply with the 

directive to remove the shirt. 

 

1 This case was initially argued in December 2012 and then held 

in abeyance pending resolution of various challenges to the 

constitutionality of certain appointments to the NLRB. Those 

challenges have now been resolved in a way that does not affect this 

case. See Mathew Enterprise, Inc. v. NLRB, 771 F.3d 812 (D.C. 

Cir. 2014). 
4

Publicly visible employees consist of two groups: 

technicians who install and repair lines at residences and 

businesses, and technicians who work on construction projects 

in public. Those publicly visible employees are subject to 

AT&T’s appearance standards. AT&T requires those 

employees to present a professional appearance at all times and 

to refrain from wearing clothing with “printing and logos that 

are unprofessional or will jeopardize” the “Company’s 

reputation.” Notwithstanding the appearance guidelines, in 

the years before this incident, several individual AT&T 

employees had worn shirts printed with questionable messages 

and had not been disciplined for doing so. Examples 

included: “Support your local hookers” (with an image of a 

fishing lure); “The liver is evil. It must be punished”; “I’m not 

drunk. I’m just a race fan”; “If I want your opinion . . . . . I’ll 

take the tape off your mouth!”; and “Out Of Beer. Life Is 

Crap.” 

After the suspensions in this case, the union filed an unfair 

labor practice charge. According to the union, AT&T 

infringed on employees’ rights under Section 7 of the National 

Labor Relations Act by disciplining employees who had 

refused to remove their “Inmate/Prisoner” shirts. See 29 

U.S.C. § 157. 

AT&T responded by invoking the “special circumstances” 

doctrine, a limitation on Section 7 long recognized by the 

Supreme Court. See Republic Aviation Corp. v. NLRB, 324 

U.S. 793, 801-03 (1945). Under the “special circumstances” 

doctrine, a company may lawfully ban union messages on

publicly visible apparel on the job when the company 

reasonably believes the message may harm its relationship 

with its customers or its public image. See
5

Bell-Atlantic-Pennsylvania, Inc., 339 NLRB 1084, 1086 

(2003). 

In arguing that the “special circumstances” doctrine 

applied here, AT&T explained that it banned only employees 

who interact with customers or work in public from wearing 

the “Inmate/Prisoner” shirt. See Bell-Atlantic-Pennsylvania, 

339 NLRB at 1084-85. AT&T officials testified that the shirts 

could alarm or confuse customers, could cause customers to 

believe that AT&T employees were actually convicts, or could 

harm the company’s public image more generally. AT&T 

was particularly concerned about how the shirts would be 

perceived in Connecticut in light of a recent and widely 

publicized home invasion in Cheshire, Connecticut, in which 

three people were murdered. And AT&T expressed concern 

not only about the specific risk that customers would believe 

the employee was actually a convict, but also about the shirt’s 

potential negative effects on AT&T’s public image more 

generally. 

The administrative law judge decided that AT&T’s

prohibition of the shirts violated the Act. In a divided 

decision, the National Labor Relations Board affirmed the 

ALJ’s conclusion, finding that the “Inmate/Prisoner” shirt 

“would not have been reasonably mistaken for prison garb” 

and that “the totality of the circumstances would make it clear” 

that a technician wearing the shirt was an AT&T employee 

“and not a convict.” Southern New England Telephone Co., 

356 NLRB No. 118, at 1 (2011). Board Member Hayes 

dissented, concluding that the potential for the shirt “to alarm 

customers and thereby damage” AT&T’s “reputation was 

sufficient to justify its regulation.” Id. at 3.
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AT&T has filed a petition for review of the Board’s 

decision. We review the Board’s application of the law to the

facts for reasonableness. See New York & Presbyterian 

Hospital v. NLRB, 649 F.3d 723, 729 (D.C. Cir. 2011).

The “special circumstances” exception to Section 7 is 

designed “to balance the potentially conflicting interests of an 

employee’s right to display union insignia and an employer’s 

right to limit or prohibit such display.” Nordstrom, Inc., 264 

NLRB 698, 700 (1982). “Special circumstances” include 

“protecting the employer’s product” and “maintaining a certain 

employee image.” Guard Publishing Co. v. NLRB, 571 F.3d 

53, 61 (D.C. Cir. 2009).

The Board has repeatedly recognized that an employer 

that reasonably believes its employees’ union apparel at work 

may damage the employer’s relationship with its customers or 

its public image may invoke the “special circumstances” 

exception. In one such case, employees of a grocery store

wore union shirts stating “Don’t Cheat About the Meat!” 

Pathmark Stores, Inc., 342 NLRB 378, 378 (2004). The 

Board ruled that “the slogan reasonably threatened to create 

concern” among “customers about being cheated, raising the 

genuine possibility of harm to the customer relationship.” Id.

at 379. In another case, a company banned its employees 

from wearing T-shirts depicting employees as squashed 

carcasses labeled “Road Kill.” See

Bell-Atlantic-Pennsylvania, 339 NLRB at 1084-85. The 

Board upheld an arbitrator’s conclusion that the ban was 

appropriate because the employer “reasonably could believe 

that observing the shirt would unsettle the public despite the 

absence of explicit disparagement of the [company’s] products 

or service.” Id. at 1085. The Board stated: “An employer’s 

concern about the ‘public image’ presented by the apparel of its 
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employees is, therefore, a legitimate component of the ‘special 

circumstances’ standard.” Id. at 1086.

Similarly, this Court has concluded that “special 

circumstances” may justify an employer’s ban on a shirt that 

mocked a company incentive program. The incentive 

program was known as “WOW.” The shirts said “I don’t need 

a WOW to do my job.” See Medco Health Solutions of Las 

Vegas, Inc. v. NLRB, 701 F.3d 710, 712, 716-17 (D.C. Cir. 

2012). This Court criticized the Board’s cursory rejection of

the company’s “straightforward argument that the message on 

the T-shirt was insulting to the company and would have 

undermined its efforts to attract and retain customers.” Id.

It is true that the employer bears the burden of 

demonstrating “special circumstances.” See Guard 

Publishing, 571 F.3d at 61. But the Board has recognized that 

an employer can meet its burden by demonstrating a 

reasonable belief that the message may damage customer 

relations – even in the absence of evidence of actual harm. In 

Pathmark Stores, for example, the prohibited message created

a reasonable risk to the customer relationship, and the Board 

did not require the company to present evidence that the shirts 

actually affected customer behavior. See 342 NLRB at 379. 

Likewise, in Medco Health, this Court stated that Board 

precedent did not “require the employer to offer additional 

evidence beyond a relationship between its business and the 

banned message.” 701 F.3d at 717; see also Nordstrom, 264 

NLRB at 701 n.12 (employer “need not await customer 

complaint before it takes legitimate action to protect its 

business”).

In this case, we conclude that the Board applied the 

“special circumstances” exception in an unreasonable way. In 
8

particular, the Board found that the “Inmate/Prisoner” shirt 

“would not have been reasonably mistaken for prison garb” 

and thus was not “reasonably likely, under the circumstances, 

to cause fear or alarm” among AT&T’s customers. Southern 

New England, 356 NLRB at 1. As this Court observed in 

Medco Health, however, the Board’s “expertise is surely not at 

its peak in the realm of employer-customer relations.” 701 

F.3d at 717. And here, the appropriate test for “special 

circumstances” is not whether AT&T’s customers would 

confuse the “Inmate/Prisoner” shirt with actual prison garb, but 

whether AT&T could reasonably believe that the message may 

harm its relationship with its customers or its public image. 

To resolve this case, it is enough to ask the question, as 

Member Hayes did in dissent: “What would you think about a 

company that permitted its technicians to wear such shirts 

when making home service calls?” Southern New England, 

356 NLRB at 2.

Citing our decision in Guard Publishing, the Board 

suggests that AT&T did not enforce its ban on unprofessional 

clothing in an evenhanded way, allowing other questionable 

shirts to be worn while banning the “Inmate/Prisoner” shirt. 

But the other shirts were not nearly as problematic as the one at 

issue here, or at least a reasonable employer could so conclude. 

Moreover, no case holds that a company that on some 

occasions has allowed unprofessional clothing to be worn by 

employees is somehow estopped from prohibiting other 

unprofessional clothing. The ultimate question for the Board

in any individual case is whether the employer has shown a 

reasonable belief that the particular apparel may harm the 

employer’s relationship with its customers or its public image. 

In short, given the straightforward evidence that AT&T 

introduced of the shirt’s message and the circumstances under 
9

which customers interact with or can see employees wearing 

the shirt, the Board should have held that “special 

circumstances” applied here. 

* * *

We grant AT&T’s petition for review, vacate the Board’s 

decision and order with respect to the “Inmate/Prisoner” shirts, 

and deny the Board’s cross-application for enforcement.

So ordered.